Citation Nr: 1801654 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-13 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for diabetes mellitus, type II, including as due to exposure to herbicide agents. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. I. Sims, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to March 1979, he subsequently joined the Wisconsin Air National Guard and retired in 2000 with more than 20 years and five months of service for retirement. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico that denied reopening for a claim of service connection for diabetes mellitus, type II. The Agency of Original Jurisdiction (AOJ) was Roanoke, Virginia at the time of the January 2013 rating decision. Of note, the Veteran's claim for service connection for diabetes mellitus, type II was previously denied by July 2003 and January 2013 rating decisions. The evidence considered section of the July 2003 rating decision considered personnel records from the Veteran's time in the National Guard, but did not include any personnel records from his time on active duty while serving in Thailand. Rather, personnel records from this period appear to have been obtained in conjunction with the Veteran's claim to reopen. These records constitute relevant service department records that existed and had not been associated with the claims file at the time of the 2003 rating decision. As such, this case will be reconsidered and new and material evidence is not required. See 38 C.F.R. § 3.156(c). FINDING OF FACT The weight of the evidence is at least in equipoise as to whether the Veteran's diabetes mellitus, type II began during his military service, was caused by his service, or is otherwise etiologically related to his military service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, service connection for diabetes mellitus, type II is warranted. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran asserts Agent Orange exposure is the cause of his diabetes mellitus, type II. With regard to this disability, the issue is whether the Veteran experienced an in-service event, incurrence, or injury. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Service connection can be established by evidence that shows "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." 38 C.F.R. § 3.310(a) (2016); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition to the general rule for service connection, additional laws and regulations are applicable to claims of diabetes, due to Agent Orange exposure. 38 C.F.R. § 3.309(e). A Veteran who served in the Republic of Vietnam during the Vietnam era will be presumed to have been exposed to certain herbicide agents during such service unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iv); 74 Fed. Reg. 36640. Diseases associated with herbicide exposure for purposes of this presumption include type II diabetes. 38 C.F.R. § 3.309(e). VA has extended the presumption of exposure to Agent Orange and the presumption of service connection for diabetes mellitus, type II, to a Vietnam-era Veteran who served in Thailand between February 28, 1961 and May 7, 1975. Additionally, application of the presumption requires service at certain designated bases, to include Nakhon Phanom Royal Thai Airforce Base (Nakhon Phanom), and that the Veteran's duties placed him on or near the perimeter of the base where Agent Orange was sprayed. Initially, the Board notes that service in the Republic of Vietnam is not shown and is not argued by the Veteran. Rather, the veteran argues his diabetes is due to his exposure to herbicides while stationed in Thailand. Through his representative, the Veteran argues that he worked as an electrician in Thailand and his duties required him to respond to electrical trouble calls, replace light bulbs, and repair lighting and electrical fixtures around the perimeter of the base. Additionally, the Veteran notes working on the base's airfield lighting system, as well as road construction projects in the local area. In written correspondence to VA, the Veteran stated that there was defoliant sprayed in an area where he worked on building bridges and clearing land. The Veteran stated he was "told that it killed the vegetation outside the perimeter of the airfield." The Veteran also noted that barrels, once believed to contain Agent Orange, were cut in half and used for barbeques. The Veteran reported working around the flight line and aircrafts in the course of his duties, as well as travel to Udorn air base and Sakonkar, Thailand. The Veteran's service records reflect that he was a member of a civil engineering squadron with a military occupational specialty of electrician. The Veteran's military personnel performance records reflect that he served at Nakhon Phanom in Thailand from July 1971 to August 1972. These records also indicate that during his time at Nakhon Phanom, the Veteran responded to emergency power failures and service calls, worked on airfield lighting systems, repaired generators and aircraft maintenance equipment. Additionally, the Veteran is noted to spend "much of his off-duty time on road construction projects for the local people." The Board has considered the Agent Orange Memorandum Determination, dated December 2012; Personnel Information Exchange System (PIES) response, dated December 2011; and the Memorandum for the Record regarding use of herbicides in Thailand. None of these documents provide specific information to refute the Veteran's claim of service near the perimeter. Resolving doubt in the Veteran's favor, the Board finds that the evidence of record establishes herbicide exposure in the Thailand during the Vietnam era. The Veteran's service records indicate his present in Thailand during the presumptive period. Additionally, his service records indicate presence on a designated military base with activity around the airfield and various other areas, potentially near the base perimeter. Further, the Board finds the Veteran is competent to report his military history, and finds no reason to doubt the Veteran's contention that his duties placed him at or near the perimeter of the base on many occasions. Moreover, the Project CHECO Southeast Asia Report: Base Defense in Thailand 1968-1972 (Report) indicates that most bases had lighting on the perimeter fences and several additional units to provide additional illumination as back up and in critical areas. Additionally, the Report states that Nakhon Phanom base had rainy season vegetation problems and heavy use of herbicides kept the growth under control in the fended areas. The Report provides details that supports the Veteran's statements and the possibility that the Veteran had to repair or replace lighting on the base perimeter. Accordingly, resolving all reasonable doubt in the Veteran's favor, presumed exposure to herbicides is conceded on a factual basis. The Veteran's medical records indicate that he is currently diagnosed with diabetes mellitus, type II. Post-service treatment records document diagnosis and medication for diabetes mellitus as early as 1995. Additional VA treatment records reflect two prescriptions for insulin to be taken prior to meals and at bedtime. The Board finds that the Veteran is presumed to have been exposed to herbicides during active service, and he has a current diagnosis of diabetes mellitus, type II. Additionally, the medical evidence of record establishes that the Veteran's diabetes requires insulin injections and a restricted diet, indicating that it has become manifest to a degree of 10 percent disabling or more. 38 C.F.R. § 3.307(a)(6); 38 C.F.R. 4.119, Diagnostic Code 7913. As a result, service connection for diabetes mellitus is warranted on a presumptive basis. See 38 C.F.R. § 3.307, 3.309(e). The Board has granted the Veteran's claim of entitlement to service connection for diabetes mellitus, type II; any error relating to the duties to notify and assist with respect to this claim is moot. ORDER Service connection for diabetes mellitus, type II is granted. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs